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Alternatives to Allowing Conflicted Individuals to Sit on Advisory Boards

Monday, August 23rd, 2010

Robert Wechsler

Should advisory board and task
force members be excepted from conflict of interest rules? Jurisdictions disagree about this. Some believe that, when a
board has no authority to act or implement, the usual rules should not
apply. The principal argument is that there are times when a government
needs to get people with opposing interests together — such as business
and union interests — in order to hash out community problems. Another
argument is the need for expertise.

This issue is being dealt with in Fort Worth and, as most ethics issues
are handled in Fort Worth, it's not pretty. This first of two blog
posts on the matter will deal with the issue itself. The second blog post will
deal with how Forth Worth has mishandled the issue.

Although there are occasions where an exception to conflict of interest
rules may be considered the best way to handle potential advisory board members'
conflicts, this would rarely happen. Therefore, the common solution of creating a blanket
exception for advisory boards is an irresponsible way to handle such
conflicts. There are five alternative ways of handling such conflicts,
and one or more of them will be the most responsible way of handling
the great majority of situations.

One alternative is to designate members with conflicts as advisory or
ex officio members, that is, members who fully participate but do not
get a vote.

A second alternative is to allow those with conflicts to testify and
advise the task force, rather than serve on it.

A third alternative is to find members with expertise who do not have
conflicts, such as retirees, academics, and individuals who have moved
on to other careers.

As soon as you recognize that there are alternatives such as these,
it no longer seems necessary that advisory board and task force members
will have conflicts. If there are other alternatives to excepting
advisory board and task force members from conflict of interest laws,
it seems irresponsible to do that.

Until I wrote this blog post and thought this matter through, the
City Ethics Model Code contained just such an irresponsible exception.
The exception was presented as an exception to the definition of
"official and employee" in §111.10, so that advisory board members would not be covered by the ethics code:

A member of an advisory board if, but only if, the advisory board
has no authority to implement its recommendations or to act on behalf
of the city or to restrict the authority of the city to act.

That's a relatively clear definition of how an advisory board may be
distinguished from other boards, but does it do the trick? I don't
think so. One reason is that advisory boards make recommendations that
are taken very seriously and often accepted as a whole by mayors,
councils, and other bodies. Just because they cannot implement their
recommendations does not mean that their recommendations are not of
great importance.

Another reason why such a definition is not sufficient is that it is
worthless for any body that is not trusted by the public to make
recommendations. Why set up a task force with conflicted members, whose
conclusions will be seen as biased?

There is, of course, the possibility of creating a body consisting
of representatives of, say, unions and employers, fifty-fifty, to make
joint recommendations. If they can agree, their recommendations would
be very useful. But even here, there are two more alternatives.

One alternative is to have the advisory board not be a government
body, but instead an independent body created and selected by the
unions and employers, or their representative bodies.

The second alternative is that, if it were considered important that
it be a government body, and that the advisory board contain members
with conflicts, the advisory board could seek a waiver from the ethics
commission. Unless this sort of task force is the norm, and it isn't,
there is no reason to carve out a broad exception when the waiver process is
available to deal with truly exceptional situations.

The waiver process is a democratic and
transparent process, because it requires the parties involved to
make their case in public, allowing others to either oppose the
creation of such a government body, or to argue that interested
individuals are not truly essential to the goals for which the body was
created. If done correctly, it should cause the public to trust an exceptional body with conflicted members.

With these five alternatives available, there is no reason for a
blanket exception of advisory board and task force members from
conflict of interest rules. Needless to say, that is the course chosen by the
Fort Worth council, a course that will be discussed in the next blog
post (along with other problems).